Civil Liberties

Originally published at The Guardian by Spencer Ackerman and Dominic Rushe in New York, and Julian Borger in London on 12/9/14

The full extent of the CIA’s interrogation and detention programmes launched in the wake of the September 11 terror attack was laid bare in a milestone report by the Senate intelligence committee on Tuesday that concluded the agency’s use of torture was brutal and ineffective – and that the CIA repeatedly lied about its usefulness.

Report released by Senate after four-year, $40m investigation concludes CIA repeatedly lied about brutal techniques in years after 9/11

The report represented the most scathing congressional indictment of the Central Intelligence Agency in nearly four decades. It found that torture “regularly resulted in fabricated information,” said committee chairwoman Dianne Feinstein, in a statement summarizing the findings. She called the torture programme “a stain on our values and on our history”.

“During the brutal interrogations, the CIA was often unaware the information was fabricated.” She told the Senate the torture program was “morally, legally and administratively misguided” and “far more brutal than people were led to believe”.

That was the question yesterday before a federal appeals court in San Francisco, where government lawyers argued that National Security Letters — FBI requests for information that are so secret they can’t be publicly acknowledged by the recipients — were essential to counterterrorism investigations. The telecom company and internet provider that have challenged the National Security Letters (known as NSLs) still can’t even be named.

Last year, in a sharp rebuke to the government, a judge found that the gag order that comes with NSLs violated the First Amendment. The nondisclosure rule “significantly infringe[s] on speech regarding controversial government powers,” U.S. District Judge Susan Illston, of Northern California, wrote in March 2013. She also ordered that the FBI stop sending out NSLs entirely, but put the order on hold to give the government a chance to appeal.

The government, predictably, did appeal, and in arguments yesterday before the 9th Circuit, a Justice Department lawyer said that they would lose “an extremely useful tool” if the court upholds the ban on NSLs. (Documents related to the case can be found here.)

The letters, the reach of which was expanded under the Patriot Act in 2001, let the FBI get business records from telephone, banking, and Internet companies with just a declaration that the information is relevant to a counterterrorism investigation.

Originally published at the Miami Herald by Carol Rosenberg on 8/22/14 (Updated 9/26/14)

Mystery solved, if there was any doubt: It was the CIA that hit the mute button in the war court earlier this year when a defense lawyer for the accused 9/11 mastermind began talking about the CIA’s secret overseas prisons, the lawyer said Monday.

The Jan. 28 episode so embarrassed Army Col. James Pohl, the judge in the Sept. 11 terror case, that he ordered the kill switch unplugged, an order the agency apparently honored because no outside entity has censored the court since.

Prosecutors had only allowed the kill-switch operator to be identified by the codename “OCA,” short for Original Classification Authority.

But Monday, attorney David Nevin, representing Khalid Sheik Mohammed, whom the CIA waterboarded 183 times, unmasked the OCA in open court while describing to the judge the slow pace of discovery in a Defense Department investigation of whether anyone else has the power to listen in on the war court, specifically their confidential attorney-client conversations.

“We recently learned that was the CIA, that CIA was controlling that location of the feed,” Nevin told the judge.

And this time nobody muted him for uttering the initials of the Central Intelligence Agency

The strange censorship episode occurred in January just as Nevin was asking the judge to issue a protective order on whatever remnants exist of the CIA’s secret overseas prison network. Pohl’s the judge who similarly declared the Abu Ghraib prison in Iraq a crime… Continue reading →

EPIC (Finally) Obtains Memos on Warrantless Wiretapping Program: More than eight years after filing a Freedom of Information Act request for the legal justification behind the “Warrantless Wiretapping” program of President Bush, EPIC has now obtained a mostly unredacted version of two key memos (OLC54) and (OLC85) by former Justice Department official Jack Goldsmith. EPIC requested these memos just four hours after the New York Times broke the story about the program in December 2005. When the agency failed to release the documents, EPIC filed a lawsuit. The ACLU and the National Security Archive later joined the case. These two Office of Legal Counsel memos offer the fullest justification of the warrantless wiretapping program available to date, arguing that the president has inherent constitutional power to monitor American’s communications without a warrant in a time of war. But some parts of the legal analysis, including possibly contrary authority, are still being withheld. The warrantless wiretapping program was part of “Stellar Wind,” a broad program of email interception, phone record collection, and data collection undertaken by the NSA without the approval of Congress.

Background

In December 2005, the New York Times reported that President Bush secretly issued an executive order in 2002 authorizing the National Security Agency to conduct warrantless surveillance of international telephone and Internet communications on American soil. President Bush acknowledged the existence of the NSA surveillance program and vowed that its activities would continue.

A new poll reveals that three quarters of reporters agree the public isn’t getting the information it needs

As states move to hide details of government deals with Wall Street, and as politicians come up with new arguments to defend secrecy, a study released earlier this month revealed that many government information officers block specific journalists they don’t like from accessing information. The news comes as 47 federal inspectors general sent a letter to lawmakers criticizing “serious limitations on access to records” that they say have “impeded” their oversight work.

The data about public information officers was compiled over the past few years by Kennesaw State University professor Dr. Carolyn Carlson. Her surveys found that 4 in 10 public information officers say “there are specific reporters they will not allow their staff to talk to due to problems with their stories in the past.”

“That horrified us that so many would do that,” Carlson told the Columbia Journalism Review, which reported on her presentation at the July conference of the Association for Education in Journalism and Mass Communication.

Carlson has conducted surveys of journalists and public information officers since 2012. In her most recent survey of 445 working journalists, four out of five reported that “their interviews must be approved” by government information officers, and “more than half of the reporters said they had actually been prohibited from interviewing [government] employees at least some of the time by public information officers.”… Continue reading →

The New York Times reporter James Risen, who faces jail over his refusal to reveal a source and testify against a former CIA agent accused of leaking secrets, has called President Barack Obama “the greatest enemy of press freedom in a generation”.

Speaking to his colleague Maureen Dowd, Risen accused the president of aggressively pursuing journalists, including himself, who report sensitive stories that reflect poorly on the US government.

Risen faces jail over his reporting of a botched intelligence operation that ended up spilling nuclear secrets to Iran. The Justice Department has long been seeking to force him to testify and name the confidential source of the account, which is contained in his 2006 book State of War.

Risen recently failed in an attempt to have the supreme court review an order for him to testify, and acknowledges that he has exhausted all his legal options against the Justice Department’s pursuit of him under the controversial Espionage Act. In the face of incarceration that could come as early as this autumn, he is resorting instead to journalistic defiance.

• Journalist refuses to reveal source of story about CIA operation
• President’s support for press freedom called ‘hypocritical’

Risen would be the first journalist to go to prison for failing to divulge sources since 2005, when the former New York Times reporter Judith Miller was jailed for contempt of court, after refusing to testify about a… Continue reading →

Investigations, Trials of American Muslims Rife with Abuse

James Cromitie, center, is escorted from Federal Plaza, headquarters of the FBI in New York, by federal agents and police, early Thursday, May 21, 2009. Cromitie and three other men were arrested Wednesday night in what the authorities said was a plot to bomb two synagogues in the Bronx and shoot down military planes at an Air National Guard base in Newburgh, N.Y. (Michael Appleton/The New York Times)

(Washington, DC) –The US Justice Department and the Federal Bureau of Investigation (FBI) have targeted American Muslims in abusive counterterrorism “sting operations” based on religious and ethnic identity, Human Rights Watch and Columbia Law School’s Human Rights Institute said in a report released today. Many of the more than 500 terrorism-related cases prosecuted in US federal courts since September 11, 2001, have alienated the very communities that can help prevent terrorist crimes.

The 214-page report, “Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions,” examines 27 federal terrorism cases from initiation of the investigations to sentencing and post-conviction conditions of confinement. It documents the significant human cost of certain counterterrorism practices, such as overly aggressive sting operations and unnecessarily restrictive conditions of confinement.

“Americans have been told that their government is keeping them safe by preventing and prosecuting terrorism inside the US,” said Andrea Prasow, deputy Washington director at Human Rights Watch and one of the authors of the report. “But take a closer… Continue reading →

Nearly all of the highest-profile domestic terrorism plots in the United States since 9/11 featured the “direct involvement” of government agents or informants, a new report says.

Some of the controversial “sting” operations “were proposed or led by informants”, bordering on entrapment by law enforcement. Yet the courtroom obstacles to proving entrapment are significant, one of the reasons the stings persist.

The lengthy report, released on Monday by Human Rights Watch, raises questions about the US criminal justice system’s ability to respect civil rights and due process in post-9/11 terrorism cases. It portrays a system that features not just the sting operations but secret evidence, anonymous juries, extensive pretrial detentions and convictions significantly removed from actual plots.

“In some cases the FBI may have created terrorists out of law-abiding individuals by suggesting the idea of taking terrorist action or encouraging the target to act,” the report alleges.

Out of the 494 cases related to terrorism the US has tried since 9/11, the plurality of convictions – 18% overall – are not for thwarted plots but for “material support” charges, a broad category expanded further by the 2001 Patriot Act that permits prosecutors to pursue charges with tenuous connections to a terrorist act or group.

In one such incident, the initial basis for a material-support case alleging a man provided “military gear” to al-Qaida turned out to be waterproof socks in his luggage.

On May 20, 2009, four men from the impoverished and largely African-American city of Newburgh, NY, were apprehended for an alleged terror plot. They had no history of violence or terrorist ties, but had been drawn by a Pakistani FBI informant into a carefully orchestrated scheme to bomb Jewish synagogues in a wealthy New York City suburb and fire Stinger missiles at U.S. military supply planes. Their dramatic arrest, complete with armored cars, a SWAT team and FBI aircraft, played out under the gaze of major TV outlets, ultimately resulting in 25-year prison sentences for the “Newburgh Four.”

Amidst the media frenzy surrounding the case, political figures extolled the outcome as a victory in the “war on terror” and a “textbook example of how a major investigation should be conducted,” though others believed the four men were victims of FBI entrapment. THE NEWBURGH STING delves deeply into this case — one of many cases across the country where people have been allegedly drawn into a plot with extreme consequences.

The Imam and assistant Imam of Mesjid al-Ikhlas, Newburgh mosque, recall their first encounters with Shahed Hussain – an undercover informant sent to Newburgh by the FBI in 2008 on a mission to find domestic terrorists. Representing himself as a businessman, Hussain drove expensive cars and made inflammatory statements about women and jihad. Suspicious, the Imams told a few of their congregants to stay away from Hussain, but one man, James Cromitie, bought into his story. Cromitie, a low-level drug dealer… Continue reading →

Originally published at AP by Jack Gillum and Eileen Sullivan on 6/12/2014

WASHINGTON (AP) — The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned.

Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment.

Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.

One well-known type of this surveillance equipment is known as a Stingray, an innovative way for law enforcement to track cellphones used by suspects and gather evidence. The equipment tricks cellphones into identifying some of their owners’ account information, like a unique subscriber number, and transmitting data to police as if it were a phone company’s tower. That allows police to obtain cellphone information without having to ask for help from service providers, such as Verizon or AT&T, and can locate a phone without the user even making a call or sending a text message.

But without more details about how the technology works and under what circumstances… Continue reading →

Reauthorisation is fifth since the Guardian revealed existence of Section 215 telephony metadata program in June last year.

The Fisa court has granted a 90-day extension of the licence that allows the NSA to collect metadata.

US intelligence agencies have made a fifth attempt to extend their bulk collection of American telephone records – more than a year after the controversial practice was first revealed by National Security Agency whistleblower Edward Snowden.

Despite repeated calls from Congress and President Obama for the mass gathering of private US phone records to be banned, a court has approved the request in secret, allowing the NSA to continue collecting metadata until 12 September 2014.

“Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program,” said the joint statement.

The White House has played a larger role in the serious dispute between the CIA and the Senate Intelligence Committee over an ongoing investigation, according to reports.

President Obama’s team has been withholding about 9,400 documents that the Intelligence Committee requested as part of its review of the CIA’s now-defunct detention and interrogation program, McClatchy reports. Since 2009, the White House has ignored or rejected multiple requests from the committee to review the documents.

Mr. Obama said Wednesday he supports the committee’s efforts. “We have worked with the Senate committee so that the report that they are putting forward is well-informed, and what I’ve said is that I am absolutely committed to declassifying that report as soon as the report is completed,” he said.

The White House said in a statement to McClatchy that it withheld “a small percentage” of the 6.2 million pages of documents provided to the committee “because they raise executive branch confidentiality interests.” The White House added it has worked closely with the committee “to ensure access to the information necessary to review the CIA’s former program.”

HAMBURG – A new foundation to support whistleblowers is being launched by former British intelligence agent Annie Machon, whose resignation and revelations about U.K. spying activities in the 1990s sparked controversy echoing this year’s NSA news.

“Crucially, we want to encourage other whistleblowers to come forward,” she said. “It is a very frightening and lonely process to go through. We need to show that they can not only survive the process, but even flourish.”

Machon’s experience in the 1990s in some senses prefigured what sources such as Edward Snowden and Chelsea Manning are going through today.

An intelligence officer with the British MI5 service for six years, she and her partner resigned in 1997 and made public a number of allegations about secret and potentially criminal activities.

Among these, they alleged that intelligence services had been keeping secret files on government ministers, had illegally tapped phones, had failed to stop Irish Republican Army bombs and subsequently lied about their actions, that people known to be innocent had been convicted of bombing crimes, and – most explosively – that MI6 had sought to have Libya’s Muammar Gaddafi assassinated.

She and her partner were forced on the run in Europe for the next year, and her partner ultimately went to prison twice for… Continue reading →

Over four years after President Obama promised to “look forward, not backward” regarding the CIA’s brutal treatment of captives under the Bush administration, the issue has not gone away. The torture debate may fade from the headlines for weeks or months at a time, but it al

ways come back. Last year the trigger was the release of Zero Dark Thirty. A few weeks ago, it was Abu Anas al-Libi’s capture, shipboard interrogation and transfer to the United States for trial. Later this year, the Senate Select Committee on Intelligence (SSCI) will vote on whether to begin declassification of its 6,000-page report on the CIA’s detention and interrogation of terrorism suspects.

Often, debates about torture focuses on whether it leads to high-profile counterterrorism successes: the killing of Osama bin Laden, the capture of high-level suspects like Khalid Sheikh Mohammed, the disruption of terrorist plots against Los Angeles or London. The public evidence suggests—and according to Democratic senators, the SSCI report will definitively prove—that defenders of “enhanced interrogation” have greatly exaggerated the role that torture played in these events.

In all the debates about whether torture “worked,” though, there is another part of the record that is almost always forgotten: the attacks that torture did not prevent. There are no documented cases of “ticking time bombs” being defused by torture. But there are Al Qaeda plots that were not stopped,… Continue reading →

Invoking the events of 9/11 to justify the controversial NSA programs, which have caused major diplomatic fallout around the world, was the top item on the talking points that agency officials were encouraged to use.

Under the subheading “Sound Bites That Resonate,” the document suggests the statement “I much prefer to be here today explaining these programs, than explaining another 9/11 event that we were not able to prevent.”

NSA head Gen. Keith Alexander used a slightly different version of that statement when he testified before Congress on June 18 in defense of the agency’s surveillance programs.

Asked to comment on the document, NSA media representative Vanee M. Vines pointed Al Jazeera to Alexander’s congressional testimony on Tuesday, and said the agency had no further comment. In keeping with the themes listed in the talking points, the NSA head told legislators that “it is much more important for this country that we defend this nation and take the beatings than it is… Continue reading →

A special agent with the Federal Bureau of Investigation’s (FBI) New York Field Office Special Weapons And Tactics (SWAT) team standing on the rooftop of a skyscraper in Downtown Manhattan

The FBI is instructing local police departments and “communities against terrorism” to consider anyone who harbors “conspiracy theories” about 9/11 to be a potential terrorist, in a circular released to local police departments.

The memo thus adds 9/11-official-story skeptics to a growing list of targets described by federal law enforcement to be security threats, such as those who express “libertarian philosophies,” “Second Amendment-oriented views,” interest in “self-sufficiency,” “fears of Big Brother or big government,” and “Declarations of Constitutional rights and civil liberties.”

A newly released national poll shows that 48 percent of Americans either have some doubts about the official account of 9/11, or do not believe it at all.

The FBI circular entitled “Potential Indicators of Terrorist Activities Related to Sleepers” says that people who should be ‘considered suspicious’ of possible involvement in “terrorist activity” include those who hold the “attitude” described as ” Conspiracy theories about Westerners.” The circular continues: “e.g. (sic) the CIA arranged for 9/11 to legitimize the invasion of foreign lands.”

Section of FBI circular to local police, “Potential Indicators of Terrorist Activities Related to Sleepers.”

“Sleepers” refers to “sleeper cells,” in FBI jargon, which are terrorists awaiting orders to be activated into terrorist activity.

Two events recalled a passage from the Irish poet William Butler Yeats’ “The Second Coming”:

Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world….
The best lack all conviction, while the worst
Are full of passionate intensity.

Yeats (1865-1939) wrote “The Second Coming” in 1919 to describe the moral devastation of post-WWI Europe. The “mere anarchy” is not the laissez-faire version of contract and consent between free individuals which produces good will and prosperity. The “mere anarchy” is chaos, a Hobbesian society of all-against-all that comes in the wake of sustained violence. It is a society that guts decency, loots productivity, and rewards the worst within men.

Yeats could be describing America today. Or, at least, the America that might well be tomorrow. The center cannot hold.

The first event was a quiet one; as of yet, it is an event on paper only. On May 13th, 2013, a new rule went into effect. The US Code “Defense Support of Civilian Law Enforcement Agencies” was altered by the Department of Defense to read:

“Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:

(1) Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and… Continue reading →

“During calendar year 2012, the Government made 1,856 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.”

That somewhat opaque statistic was disclosed in the Justice Department’s latest annual report to Congress on the Foreign Intelligence Surveillance Act, filed on Tuesday. As is usually the case, none of the requests for electronic surveillance were denied by the Court.

No matter how it is sliced and diced, the newly disclosed number of applications does not yield much substance. It means that the government submitted an average of 5 requests per day last year for intelligence surveillance or physical search. It is about 5% higher than the number of applications the year before (1,745), but quite a bit lower than the figure from 2007 (2,371).

The number of applications does not correspond directly to the number of targets, since multiple applications may be submitted in the course of an individual investigation. Nor is the outcome of the surveillance or search activity indicated in a way that would tend to validate or invalidate the authorization after the fact.

In any case, the FISA Court did not deny any of the government’s requests for authority to conduct electronic surveillance in whole or in part, the report said, although unspecified modifications were made to 40 proposed orders. The report does not say whether or not any requests for physical search were disapproved or modified.